Dismissal was automatically unfair even though the decision-taker did not know about the protected disclosure

18.07.2016 5 min read

The Claimant raised concerns with her line manager, Mr Widmer, about a possible breach of the Respondent's rules and of regulatory rules. In response, Mr Widmer encouraged her to retract her concerns and began an intensive performance management process, giving her an impossible list of tasks to complete and getting her to attend weekly review meetings. Mr Widmer emailed HR to indicate that the Claimant was not performing well and that they would need to look at getting rid of her if things did not change.

The Claimant contacted HR to express concern about Mr Widmer trying to manage her out after she had raised concerns, and she repeated her concerns about regulatory issues. She complained of bullying and harassment because of her disclosures. She was offered three months' pay to leave, but declined. She raised a formal grievance and went off sick.

A little later, Pauline Vickers was appointed to review the Claimant's position with the Respondent, but not her grievance. She did not see any of the Claimant's emails registering concerns about regulatory issues, but she was shown by Mr Widmer a copy of the Claimant's retraction of those concerns and was told by Mr Widmer that the Claimant had misunderstood the position. Ms Vickers did not meet the Claimant because the Claimant remained unwell, but she gave her three months' notice of termination of employment because the Claimant did not meet the performance standards required of her. At that stage, the Claimant had just over a year's service. The Claimant appealed and her appeal was dismissed.

The Tribunal found that the Claimant had made protected disclosures to Mr Widmer and to HR and that she had as a consequence been subjected to detrimental treatment, namely bullying and harassment and the offers to terminate her contract. However, it also decided that Ms Vickers genuinely thought that she was dealing with a performance issue because she believed what Mr Widmer had told her and so the Tribunal ruled that Ms Vickers's decision to dismiss was not because of the protected disclosures and not therefore automatically unfair.

The Employment Appeal Tribunal took a different view. It said that what needs to be determined in whistleblowing cases is the reason or principal reason for the dismissal in the mind of the employer. It recognised that "In the vast majority of cases all that is necessary to discern is the set of factors known to the person who made the decision to dismiss", but it also recognised that what is in the mind of the employer is not always what is in the mind of the person who decides to dismiss. It felt that there was no reason why the reason for dismissal in the mind of someone like Mr Widmer, who manipulated the decision-maker, could not be attributed to the employer. In perhaps the key passage, the appeal judge said "that, as a matter of law, a decision of a person [who decides to dismiss] made in ignorance of the true factors whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of them both." He went on to explain that in circumstances such as Ms Jhuti's, where Mr Widmer had set her up to fail and had lied to Ms Vickers and where Ms Vickers was deprived of information by HR, it is not only the mind of the decision-maker that needs to be examined to determine the employer's reasons for dismissal.

There is, perhaps, no accounting for or avoiding a situation in which a line manager is intent on misleading the person charged with taking a dismissal decision, but in this case HR were also on notice of the disclosures by Ms Jhuti and of her concerns about Mr Widmer. If there is a lesson to be learnt from what is an interesting but unusual and very specific set of facts it is that the withholding of knowledge is no defence to a finding of automatic unfair dismissal, such that in circumstances like these, where HR did hold important knowledge that put them on notice of the true position, it would have been better had that knowledge been shared and further enquiries made.

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